Friday, February 6, 2009

Perak, A Constitutional Crisis

Now that the dust is settling, it is becoming clearer what it is that took place in Perak over the last twenty-four hours. My respectful view is that His Highness may have acted erroneously in directing the resignation of the Mentri Besar.

As always, it will be useful to consider the objective facts. They are as follows:

His Highness, the Sultan of Perak, granted audiences and in doing so was made to understand that the majority of the members of the Legislative Assembly no longer support the incumbent Mentri Besar. Of these, three memberships are disputed in view of letters of resignation having been tendered to the Speaker. The Speaker has taken the position that the letters are valid and as such the two members are no longer members. Further, legal proceedings are being contemplated

excluding the three disputed memberships, both the Pakatan Rakyat and the Barisan Nasional each hold influence over twenty-eight members

twenty-eight members have indicated in private to His Highness that they no longer have confidence in the incumbent Mentri Besar. With the three disputed memberships, this number increases to thirty-one

no vote of confidence has been moved at the Assembly

the incumbent Mentri Besar made a request for dissolution of the Assembly. This request was not made on the basis that the majority of members had lost confidence in the Mentri Besar. Rather, it was made on the basis that in the circumstances it might be appropriate for fresh elections to be held in the State

on 5th February 2009 His Highness refused the request and directed the Executive Council to resign. From a statement issued by the palace, this directive was based on His Highness having refused the request for dissolution.

crucially, the directive was made in accordance with Article 16(6) of the Perak Constitution. This article provides that where a request for dissolution is made as a consequence of the Mentri Besar ceasing to command the confidence of the majority of the members of the Assembly and His Highness refuses, the incumbent Mentri Besar must tender the resignation of the Executive Council.

From the above, it is apparent that His Highness considered the situation to be one in which the Mentri Besar had ceased to command the confidence of the majority of the members. In doing so, His Highness accepted the three disputed members as still being members of the Assembly and as such approached the situation on the assumption that the Barisan block outnumbered Pakatan by three instead of one.

It must be borne in mind that:

as noted above Article 16(6) is specifically directed to a no-confidence scenario, that is the incumbent Mentri Besar can seek the dissolution of the Assembly upon his having ceased to command the confidence of the majority

Article 36(2) however provides more generally that His Highness has the power to dissolve the assembly. It is clear that this provision is aimed at allowing His Highness to dissolve the Assembly for other reasons thought to be appropriate

as a matter of law His Highness is empowered to do what is permitted under the Perak Constitution and the Federal Constitution. This is the essence of a constitutional monarchy

the Perak Constitution does not empower His Highness to dismiss the Mentri Besar. The manner in which the Mentri Besar is to be removed from office is as provided for under Article 16(6), through a refusal to dissolve the Assembly at the request of the Mentri Besar when the Mentri Besar has ceased to command the confidence of the majority of the Assembly.

It is apparent that His Highness had moved on the assumption that the request for dissolution was prompted by the Mentri Besar having ceased to command the confidence of the majority. This may have been based on a misapprehension of the situation and the appeal to the Sultan to dissolve the Assembly for reasons other than confidence. If so, then the directive to resign was arguably not tenable.

However, it could be said that all things considered His Highness had come to the conclusion that in any event the Mentri Besar no longer commanded confidence. In this context, the central question is whether His Highness was empowered to conclude that the incumbent Mentri Besar no longer commanded the confidence of the Assembly without there having been a vote of no confidence.

There is precedent. The Federal Court had in 1966 (Stephan Kalong Ningkam) determined that a similar provision of the Sarawak Constitution required there to be a vote of no confidence taken in the Assembly before the Chief Minister was obliged to resign. The decision was based on several key factors that I believe to be relevant to this discussion. These were:

the Sarawak Constitution did not empower the Governor to dismiss a Chief Minister

the phrase “confidence of the majority” was a term of art and could be read as implying the need for a vote of confidence or a vote on a major issue. The Court took into consideration the fact that the Sarawak Council Negri should, in principle, manage its own affairs.

no vote had been taken in the Council Negri and instead the Governor had come to his conclusion based on extraneous matters, particularly confidential letters. The Court observed that members expressing a view outside the Council Negri might very well take a different position in it when under the scrutiny of the public. This was of particular significance as out of the forty-two members of the Council Negri only twenty-one had indicated their not supporting the incumbent Chief Minister.

It could therefore be credibly argued that the Perak Constitution requires the tabling of a vote of confidence in the circumstances. The factors considered by the Federal Court have great significance to the scenario at hand, one as ambiguous as that which the Federal Court was faced with in 1966.

Much will now depend on what the incumbent Mentri Besar does. In Stephan Kalong Ningkam, the Chief Minister concerned took it to court and won. The Federal Court declared the Governor as having acted unconstitutionally and the dismissal of the Chief Minister invalid. Mohamad Nizar could attempt the same course.

It would be regrettable if the situation were forced to escalate to that level. Litigation of that nature, any nature for that matter, will be disruptive at all levels. With the Barisan Nasional moving in already though, it seems that there is little choice in the matter. Walking away is simply not an option that the constitution and the people and democracy will allow for.

In the meanwhile, we will have to buckle in for what has become a full-blown constitutional crisis.

20 comments:

I mean in the case of Sarawak, it's the governor that was taken to the court... Will it be seen as contempting the royals if one is to take HRH to the court?

Secondly, isn't the 3 now-independent ADUNs not recognized by the speaker of the DUN? It shall be 28 vs 28 in the DUN Perak right now unless the court found the resignation of the 3 ADUNs unacceptable...

The more interesting thing is, if the court found the whole situation unconstitutional, what would happen to HRH and the newly-sworn in BN government?

We are now witnessing the Desperate PM wannabe "Gutter Politics & Law of the Jungle" vs the Perak Mentri Besar Mohd Nizar Jamaluddin's courage, integrity and mental clarity in the face of grave adversity.

This Desperate PM wannabe has "lost the Plot" completely & "blown" his last "Trump card" to be the incoming UMNO President.

The son of our 2nd PM has now "Destroyed" his own party UMNO beyond "Redemption".

So he might as well forget about being the 6th PM of Malaysia ....maybe we should send him out as our Ambassador to Mongolia !!!

I seriously need a Constitutional Enlightenment on this crisis. The Executive branch has switched to BN but the Legislative branch is still controlled by PR via the Speaker YB Sivakumar. To the Speaker, those three reps has officially resigned and I would assume he has the power to refuse them entry. Should the Assembly reconvene and PR calls for a vote of no confidence against the BN MB and it's a stalemate. What's next?

As a former judge and now Perak Sultan, I think this decision not to dissolve the Perak assembly creates serious negative concerns about why this decision was made.The Perak Sultan is now usurping the authority of the courts (since the speaker has filed a case to the courts on the standing of the 3 turncoat ADUNs) and deciding for himself based on personal testimony of turncoats (3 of whom earlier pleged, in front to the same Sultan that they supported the PKR govt under MB Mohd Nizar, which means they cannot be said to be reliable witnesses) that BN has the support of a majority of the assembly which it does not as the status of the 3 ADUNs have yet to be decided by the court.In one fell stroke, reputation of the Perak royalty has been destroyed. It would have been the easiest and wises decision to allow for dissolution of the state assembly and let the people decide. Even the DPM Najib said that if the Sultan dissolves the assembly he will accept it. So why did the Sultan decide otherwise.With this decision I am certain that many things are running through minds of not only Perakians by all Malaysians as well and I would think that most of the conclusions do not show the whole Perak royalty in good light (thats putting it lightly).

The Sultan can still salvage the situation before it gets cold and people's poor view of the royalty is forever cemented. Dissolve the state assembly and call for state elections.

MIS,Please work hand in hand as a legal team with Karpal Singh,Art Harun...to fight for the OPPRESSED RAKYAT here in Perak.

I am sure with the divine & legal wisdom that you guys possess and with Lord Blessing, you guys will surely set another highest authority in our Land to shed some light pertaining to the constitutional crisis that we are now facing !

I totally agree with your views that since HRH has made his decision (rightly or wrongly), this matter should now be referred to the courts and let's hope that justice would be served.

We had high hopes for HRH and Raja Nazrin then. But this recent turn of events may 'hurt' the Perak monarchy's standing in public opinion polls I am sure. Sadly, they have turned their backs on us. Really as much as I hate the 4 scumbags for their crossovers, this decision seemed to have endorsed the monarchy's support for them even when 2 of them are being tried for corruption. This is really a new low. Constitution against conscience. Which will you pick??

What has happened is already a big mess. Now let us all hope in the months to come, we get a clearer picture whether democracy is still alive in M'sia. For now, I am resigned to the fact that democracy is dead....

I am wondering what do you think if the Sultan making his decision that tbe MB 'has lost the confidence of majority' based on meeting the 3 'independent' assemblymen. Even if past cases say the resignation letters where not valid, does the Sultan have a right to go against the Speaker's decision?

Just waiting for somebody (expecting Anwar Ibrahim to change his tone soon) to say 'The Sultan Has Acted with Bias Intention’ to help BN

And I think that’s coming very soon.

It seems that we are very good at this.

Before any election or after a defeat we’ll say thisTHE EC & THE POLICE IS WORKING TOGETHER WITH BN TO DECIDE THE RESULT THROUGH UNDEMOCRATIC AND EVIL MEANS LIKE PHANTOM VOTERS ETC

After we actually wonTHE VOICE OF THE RAKYAT HAS PREVAILED. WE WOULD LIKE TO THANK EC & OUR POLICE FORCE FOR THEIR PROFESIONALISM IN CONDUCTING THIS DEMOCRATIC PROCESS.

Statement most recently heard in Kuala Terengganu

When we announced Sept 16 agendaWE WILL SECURE ENOUGH SEAT TO OUST THE BN EVIL REGIME BECAUSE THEY HAVE LOST THE CONFIDENCE OF THEIR OWN MPs. THESE MPs ARE THE VOICE OF THE PEOPLE, AND THAT VOICE WILL BE HEARD

When we lost Perak through our own back-fired tacticTHE RAKYAT HAS BEEN DENIED OF THEIR RIGHTS. THEIR VOICES HAVE BEEN IGNORED. THESE IMMORAL MPs ARE TRAITORS TO THE CORE SPIRIT OF DEMOCRACY. THE RAKYAT HAS BEEN DECEIVED

Statement most recently heard in Ipoh

I BELIEVE EVEN IF THIS GUY IS CAUGHT RED HANDED HAVING SEX WITH ANOTHER MAN; BUT QUICKLY CLAIMED THAT HE WAS INFACT PRAYING, MOST OF US WILL BELIEVE HIM.

I agree with what Damansara has said. When the courts or royalty act in our interests, we gleefully jump for joy saying justice is served. But when it's the other way round, ... well, typical of some people who call themselves loyal subjects of Malaysia.

Why are so fixated or should I say infatuated with this Anwar guy? Every single post of yours would start with Anwar this Anwar that. Sounds like a broken record. I may safely conclude we all have gotten the gist of your thinking. To you, Anwar is a devil incarnate. No need to repeat. Now be a good boy and start writing something intelligent please. (see I'm being nice even though I think you are a dickhead).

ChengHo,

Instead of hiding behind innuendoes, why can't you provide facts to support your argument saying this is a Malay-NonMalay thingy viz Nizar being a DAP barua? Or are you one of the UMNO cybertroopers paid to spout rubbish?

Hi MIS,I would like to know about the position of the Speaker of The House. In the case of Perak, with a new Menteri Besar, who has the power to call for an Assembly Sitting?? The Speaker or the Menteri Besar?? When the Assemby sits, who will preside, since the last Assembly has not been dissolved?? Hope u can provide some explanation on this.Thanks

too hypocrisy if u asked me about opposition. they are the first who mooted the jumps. have anybody remember, anwar empty promise of the great jump on 16 september 2008. everybody in opposition laud the move and for them its ok. now when the scenario change. BN took the blame. this is political hypocrisy of the opposition. dont play people emotion, because it will ruin the country. if this is opposition true face, what happen if they rule the country?

1.I submit that the appropriate case law to be referred to in this situation is : Amir Kahar vs Tun Mohd Said Keruak 1994 in relation to establishing the term "loss of confidemce"

2. The provisions of Article 16(6) is crystal clear : If the Mentri Besar ceases to command the confidence of the majority of the members of the assembly, unless his request............the resignation of the Exco

The provisions in Article 16(6) make no room for a "fishing" expedition as you ingeniously impute:"Rather, it was made on the basis that in the circumstances it might be appropriate for fresh elections to be held." In fact, it literally calls for the tendering of a resignation letter by the MB if a majority of the members of the SA had lost confidence in the MB.

Consequent to the preceding paragraph, the very action of the MB in seeking a dissolution based on the Article 16(6) is by itself a clear imputation that the MB had lost confidence and hence has to tender his resignation (the term EXCO is implied to refering to the MB as well- somewhat like a head(MB) and the Torso(EXCO). They are not mutually exclusive entities.

3.CJ Harley in Stephen Kalong Ningkan vs Tun Abang Haji Openg ((Stephen Kalong Ningkan v Tun Abang Haji Openg (1966) 2 MLJ 187, 193, as noted in (1966) 8 Malaya LR 283)was compelled to make the decision he made due to some extenuating circumstances surrounding the case, namely the veracity of the petition which the Governor relied upon.this is also touched upon by the judge in Amir Kahar vs Said Keruak. (To be fair Stephen Kalong Ningkan vs Hj Abang Openg was the also cited here:http://www.paclii.org/ck/cases/CKCA/1983/3.htmlbut the Coram again failed to mention or delve into the extenuating circumstances peculiar to this case).

4. A cursory comparison with the relevant article in the Federal Constitution would yield the same outcome : that the PM/MB has to resign is accepted by all constitutional law experts.

5.The EC is vested by the very construction of the relevant article:Artikel 36(5):“A casual vacancy shall be filled within sixty days from the date on which it shall be established by the Election Commission that there is a vacancy…”

...from the date on which it shall be established by the Election Commission that there is a vacancy…” is a clearcut affirmation of the rights conferred to the EC to establish the existence of such a casual vacancy.It should be noted similar provisons in the sabah and sarawak constitutions confer the Ec similar powers to "establish"

All the above indicate that HRH acted within the limits of the Constitution. In fact, some procedures also recall the steps he took in relation to nizar's initial appointment, particularly those that pertain to interviewing and getting the signatures from the relevant parties.

It is sad that a simple and uncontroversial question of law has been distorted by spinmeisterism, shoddy case referencing and other unethical shenanigans by presumably well trained legal eagles and their acolytes so much so that this turmoil is beginning to slowly have an impact on the lives of poor proles like me.

I have written extensively on this situation with the relevant case referencing in both English and Bahasa Melayu in Rocky's Bru blog.I hope you will publish this opinion of mine for further discussion in a civil and mutually enlightening manner although i admit that i am not from the legal fraternity, being a poor farmer..

This well-written piece(http://www.malaysianbar.org.my/members_opinions_and_comments/thorny_issues_that_need_attention.html) also succintly puts the relevant issues in the right context.